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Official Citation: 2024 SCMR 997
Court / Jurisdiction: Supreme Court of Pakistan
Year of Decision: 2022
Decision Date: 2022-11-02
Parties: Zulfiqar Ali Bhatti vs Election Commission of Pakistan and others
This judicial decision was delivered by the Supreme Court of Pakistan on 2022-11-02. The matter involves proceedings between Zulfiqar Ali Bhatti and Election Commission of Pakistan and others, officially reported as 2024 SCMR 997. The court reviewed applicable Pakistani statutes, procedural requirements, and governing case-law authorities. The full text below contains the complete facts, arguments, and legal reasoning rendered by the honorable bench.
Case cited as 2024 SCMR 997
Court Name: Supreme Court of Pakistan Judge(s): Ayesha A. Malik, Syed Mansoor Ali Shah, Umar Ata Bandial (C.J) Title: Zulfiqar Ali Bhatti vs Election Commission of Pakistan and others Case No.: Civil Appeal No.142 of 2019, Civil Petition No.1369 of 2019 Date of Judgment:2022-11-02 Reported As: 2023 SCP 278, 2024 SCMR 997 Result: Appeal Dismissed
JUDGMENT
JUDGMENT Syed Mansoor Ali Shah, J.- The question before us, in the present case, is whether the Election Commission of Pakistan has the power to order a re-poll in one or more polling stations or in the whole constituency, under Article 218(3) of the Constitution of the Islamic Republic of Pakistan 1973 read with Section 8(c) or Section 9(1) of the Elections Act 2017, on the ground of tampering made with the election record (polling bags, ballot papers, etc.) after the consolidation of the final result of the poll by the Returning Officer under Section 95 and the publication of the name of the returned candidate in the official gazette under Section 98 of the Elections Act 2017. 2. The background facts of the case in which the said question has arisen for our consideration are that Mr. Zulfiqar Ali Bhatti ("appellant") and Mr. Amir Sultan Cheema ("respondent"), along with several other candidates, contested the general election of 2018 for the membership of the National Assembly of Pakistan from the constituency of NA 91 Sargodha-IV. In the poll held on 25- 07-2018, the appellant secured 1,10,654 votes and the respondent 1,10,567 votes. The respondent made an application, on 27.07.2018, to the Returning Officer for recounting the votes, under Section 95(5) of the Elections Act 2017 ("Elections Act"). The Returning Officer dismissed the application on 29.07.2018 and consolidated the final result of the poll on that day. On 30.07.2018, the respondent filed a petition before the Election Commission of Pakistan ("Election Commission") for setting aside the order of the Returning Officer and accepting his application for recounting the votes. The Election Commission, by its order dated 31.07.2018, disposed of the respondent's petition while directing him to approach the appropriate forum (Election Tribunal) through an election petition, for the redressal of his grievance. The respondent, however, challenged the orders of the Returning Officer and the Election Commission in the Lahore High Court through a writ petition. The High Court
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allowed the writ petition on 03.08.2018, set aside the order of the Returning Officer and directed the Returning Officer to undertake the recount of the votes in the polling stations to be indicated by the respondent. The appellant challenged the order of the High Court in this Court through a petition for leave to appeal. This Court, vide its order dated 10.08.2018, granted the leave, suspended the operation of the impugned order and directed the Election Commission to issue the notification of the appellant as a returned candidate, which was issued on the same day. Given the issuance of the said notification, the respondent filed the election petition before the Election Tribunal, on 19.09.2018. However, during the pendency of the election petition, this Court disposed of the appeal of the appellant vide a consent order dated 10.10.2018, directing the Returning Officer to recount the votes of the whole constituency and submit a report of the recount to the Election Commission. 3. In the course of the proceedings of the recount, the Returning Officer found that the election record (seals of gunny bags and poling bags, and stamps on ballot papers) of 20 polling stations had been tampered with, after the consolidation of the final result of the poll. He, therefore, declined to consolidate the result of the recount and reported the matter to the Election Commission vide his report dated 30.11.2018. He also advised the respondent to approach the Election Tribunal where his election petition was then sub judice. On the report of the Returning Officer, the Election Commission constituted a Technical Inquiry Committee on 10.12.2018, to carry out the requisite "Fact Finding Inquiry". The Inquiry Committee, in its report dated 09.01.2019, endorsed the fact reported by the Returning Officer regarding tampering with the election record. On the basis of the report of the Inquiry Committee, the Election Commission made an order on 14.01.2019, which was notified on 18.01.2019 ("impugned order"), under Article 218(3) of the Constitution of the Islamic Republic of Pakistan 1973 ("Constitution") read with Section 8(c) of the Elections Act,[1] to hold a re-poll in the 20 polling stations of which record had been tampered with. 4. In view of the order of the Election Commission for holding a re-poll in 20 polling stations, the respondent withdrew his election petition on 25.01.2019, while the appellant challenged this order of the Election Commission in the Islamabad High Court through a writ petition filed under Article 199 of the Constitution as well as in this Court through the present appeal filed under Section 9(5) of the Elections Act, by way of abundant caution due to ambiguity in ascertaining the appropriate remedy. The Islamabad High Court dismissed the writ petition of the appellant, vide its order dated 15.02.2019, on the ground that the appellant had availed the alternate statutory remedy of appeal before this Court, and observed that the appellant may re-agitate the matter in writ jurisdiction if his appeal filed in this Court under Section 9(5) of the Elections Act is dismissed on the ground of maintainability. The appellant filed the petition for leave to appeal against that order of the Islamabad High Court also, in this Court. Both the appeal and the petition for leave to appeal of the appellant are being decided by this judgment. 5. It would be pertinent to mention here that in pursuance of the impugned order of the Election Commission, the re-poll in 20 polling stations was held on 02.02.2019 and after consolidating the result of this re-poll in 20 polling stations with the result of the first poll in other polling stations, the respondent was notified as a returned candidate on 19.02.2019. The durability of this superstructure built upon the impugned order is, however, dependent upon the validity of that order. 6. We have considered the arguments of the learned counsel for the parties, read the case law cited by them and examined the record of the case. Scope of the powers of the Election Commission under Article 218(3) of the Constitution and Section 8(c) of the Elections Act 7. As the Election Commission and the respondent have mainly referred to the provisions of Article 218(3) of the Constitution and Section 8(c) of the Elections Act, to establish that the Election Commission had the power to make the impugned order, it would be appropriate to reproduce the
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provisions thereof here for ease of reference, before embarking the discussion on the question under consideration with reference to these provisions: Article 218. Election Commission. (3) It shall be the duty of the Election Commission to organize and conduct the election and to make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against. Section 8. Power of Commission to ensure fair election. Save as otherwise provided, the Commission may-- (c) issue such instructions, exercise such powers and make such consequential orders as may in its opinion, be necessary for ensuring that an election is conducted honestly, justly, fairly and in accordance with the provisions of this Act and the Rules. A bare reading of Section 8(c) of the Elections Act shows that it merely reiterates the power that is vested in the Election Commission under Article 218(3) of the Constitution by substituting the words "make such arrangements" with the words "issue such instructions, exercise such powers and make such consequential orders" that are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law. This reiteration of the power of the Election Commission by a sub-constitutional law is of little legal significance, in view of the conferment of that power already by the supreme law of the land - the Constitution. Therefore, we basically need to understand the scope of the constitutional provision. 8. Article 218(3) of the Constitution entrusts the Election Commission with the duty "to organize and conduct the election", and empowers it, in general terms, "to make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against".[2] The power so conferred is restricted to the fulfillment of the duty specified, that is, "to organize and conduct the election"[3] Therefore, in order to understand the amplitude of this power, we need to find out the meaning of the term "election" as used in Article 218(3) and to ascertain when the duty of the Election Commission to "conduct the election", as entrusted to it under this Article, starts and when it stands completed. Secondly, it also requires determination whether the duty of the Election Commission to conduct the election and the power to make the necessary arrangements therefor can be regulated by a law enacted by the Parliament; if so, what would be the status of the general power of the Election Commission under Article 218(3) of the Constitution vis--vis such law. 9. So far as the first question is concerned, the meaning of the term "election" and of the expression "conduct the election" as used in Articles 218 and 225 of the Constitution has already been expounded by a four-member Bench of this Court in Javaid Hashmi case[4]. The words "election" and "conduct the election", as expounded in that case as well as in the other cases approvingly cited therein, have been used in Articles 218 and 225 of the Constitution in a wide sense to connote the entire election process consisting of several steps starting with the issuance of the election programme and culminating with the declaration of the returned candidate, which include filing of the nomination papers, scrutiny of the nomination papers, withdrawal of the candidates, holding the poll, counting of the votes, consolidation of the result and declaration of the returned candidates, etc. In this wide sense, the process of conducting the election starts with the issuance of the election programme and stands completed on the publication of the names of the returned candidates in the official gazette.[5] 10. On the second question about regulating the constitutional duty and power of the Election Commission as to conducting the election, by a law enacted by the Parliament, we could not lay our hands on any judgment of this Court that has specifically taken up and dealt with this question. It, therefore, requires us to make a thorough examination of the operational scheme of the constitutional provisions contained in Part VIII of the Constitution on the subject of "Elections", as we
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can correctly understand the meaning and scope of a particular provision on the subject of "Elections" only when we read this Part of the Constitution as an integrated whole. 11. Part VIII of the Constitution is divided into two Chapters and contains fifteen Articles (213-226). Chapter I, comprised of Articles 213 to 221, mainly contains the provisions on the matters of the constitution of the Election Commission, the appointment of the Chief Election Commissioner and four members of the Election Commission, the term of their office, the procedure for their removal from office, the appointment of the officers and staff of the Commission, and duties of the Election Commission. While the core matters relating to the subject of "Election" that have been provided for in Chapter II (Articles 222 to 226) are the enactment of electoral laws by the Parliament, the time of general election and bye-election, the appointment of the care-taker Cabinet, and the establishment of special tribunals for resolution of election disputes by law enacted by the Parliament. 12. 'Broadly speaking, before an election machinery can be brought into operation, there are three requisites', as said by Justice Fazal Ali, 'which require to be attended to, namely, (1) there should be a set of laws and rules making provisions with respect to all matters relating to, or in connection with, elections, and it should be decided as to how these laws and rules are to be made; (2) there should be an executive charged with the duty of securing the due conduct of elections; and (3) there should be a judicial tribunal to deal with disputes arising out of or in connection with elections.'[6] On reading the provisions of Part VIII of the Constitution, we can say that, in general, Article 222 of the Constitution deals with the first of these requisites, Articles 218 and 219 with the second, and Article 225 with the third requisite. 13. The most relevant provision of Article 222, in our view, to the question being considered is that of clause (d) thereof, which is reproduced here for ready reference: 222. Electoral laws. Subject to the Constitution, Majlis-e-Shoora (Parliament) may by law provide for: (a) ................ (b) ................ (c) ................ (d) the conduct of elections and election petitions; the decision of doubts and disputes arising in connection with elections; (e) ................ (f) ................ but no such law shall have the effect of taking away or abridging any of the powers of the Commissioner or the Election Commission under this Part. The reading of clause (d) of Article 222 of the Constitution makes it clear that the Parliament can enact a law that regulates the conduct of elections and such law would consequentially also regulate the constitutional duty and power of the Election Commission to conduct the election. The confusion as to the scope of the general power of the Election Commission under Article 218(3) is, however, caused by the latter part of Article 222 which says that "no such law shall have the effect of taking away or abridging any of the powers of the Commissioner or the Election Commission under this Part". Although Article 218, as well as Article 219 of the Constitution which list out the functions of the Election Commission, uses the term "duty" for the Election Commission in relation to the conduct of the election, and the word "powers" or "power" has at no other place been expressly used in Part VIII of the Constitution for the Election Commission, we find no difficulty in construing that the "powers" referred to in Article 222 are those "duties" and "functions" the performance of which has specifically been entrusted to the Election Commission under this Part of the Constitution. For, in legal parlance, the words "power", "duty" and "function" are often used interchangeably, and the use of any one of these words is ordinarily understood to include the
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others, such as the word "function" is said to include "power" and "duty"[7]. The latter part of Article 222, therefore, operates against the taking away or abridging any of the "duties" and "functions" of the Election Commission that has been entrusted to the Election Commission under Part VIII of the Constitution. The Parliament cannot, by enacting a law, confer any of such duties and functions of the Election Commission to any other executive or judicial authority or office,[8] either entirely or partly. This is what, in our view, is meant by the latter part of Article 222. 14. So far as the general power of the Election Commission under Article 218(3) is concerned, the expression "and in accordance with law" used in that very Article clearly suggests that it is to be exercised to ensure that the election is conducted in accordance with the law enacted by the Parliament, and not in suppression thereof. The Election Commission, thus, cannot exercise its general power in a manner that would make the conduct of election otherwise than in accordance with the law enacted by the Parliament, that is, in violation or breach of such law. Therefore, a law enacted by the Parliament that regulates the conduct of elections and consequentially the constitutional duty and power of the Election Commission to conduct the election, is not hit by the provisions of the latter part of Article 222 of the Constitution; as the requirement for the Election Commission to conduct the election "in accordance with law" while performing its constitutional duty has been prescribed by the Constitution itself, not by a law enacted by the Parliament. 15. However, where the law enacted by the Parliament does not cover an unforeseen matter or issue that may arise during the election process, the Election Commission is to exercise its general power under Article 218(3) of the Constitution, in the same manner as all other discretionary powers are exercised, that is, fairly, reasonably and judiciously in accordance with the principles of equity, justice and good conscience. While exercising its general power in such a situation, the Election Commission must remember the fundamental principle that the general, plenary and inherent powers are exercised to supplement, not supplant or supersede, the law. Such powers cannot be exercised to defeat the express provisions of law but are invoked only when there is no specific provision of law on the matter or issue that needs to be dealt with.[9] 16. Accepting the contention that the Election Commission has such general and inherent power under Article 218(3) of the Constitution which is absolute or superior to the law enacted by the Parliament, would be tantamount to going against the constitutional mandate of the rule of law ensured under Article 4 of the Constitution. Article 4 of the Constitution declares it firmly that to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan. Given this constitutional mandate, in the matter of elections, the right of the citizens to vote[10] and contest elections[11] cannot be entirely left to be dealt with at the discretion of the Election Commission under its general and inherent power by construing such power to be above the law enacted by the Parliament. 17. Article 4 of the Constitution is the bedrock of the rule of law, and an antithesis to the rule of men, in our country. It is a restraint on the executive and judicial organs of the State to abide by the rule of law.[12] No person, authority, tribunal or court exercising executive or judicial powers can take any action against any person in contravention of the law. This principle equally applies to this Court in exercising its general and inherent power under Article 187(1) of the Constitution. Under this Article, the Court can issue any direction, order or decree to do complete justice between the parties in any case or matter pending before it, but cannot pass an order in contravention of any of the fundamental rights or any constitutional provision or any relevant statutory law.[13] 18. Thus, we can safely conclude on the question of the status of the general power of the Election Commission under Article 218(3) of the Constitution vis--vis a law enacted by the Parliament, that this power operates in the area uncovered by such law.[14] Alike is the scope and applicability of the powers of the Election Commission under Section 8(c) of the Elections Act, which is also evident
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from the opening words of Section 8, "Save as otherwise provided". These words indicate that if something otherwise is provided in the Elections Act, then this Section will not apply.[15] Further, the amplitude of the power of the Election Commission under this Section, like its general power under Article 218(3), is extended to the performance of its executive duty to "conduct the election" and thus it can be exercised only at any stage of the election process,[16] not after the completion thereof. 19. In other words, we can say, the general power under Article 218(3) of the Constitution and Section 8(c) of the Elections Act can be exercised by the Election Commission within two parameters: (i) during the election process, which starts with the issuance of the election programme and culminates with the publication of the name of the returned candidates in the official gazette, and (ii) when there is no express provision in the law enacted by the Parliament to deal with the matter or issue that arises during the performance of constitutional duty of conducting the elections honestly, justly, fairly and in accordance with law.[17] Applicability of Article 218(3) of the Constitution and Section 8(c) of the Elections Act to the present case 20. In the present case, the Election Commission passed the impugned order after the consolidation of the final result of the poll by the Returning Officer under Section 95 and the publication of the name of the appellant as a returned candidate in the official gazette under Section 98 of the Elections Act, when the election process has been completed. But as the notification of the appellant as a returned candidate had been issued under the interim order of this Court, the same could not have concluded the election process to create a bar on the exercise of its general power by the Election Commission under Article 218(3) of the Constitution read with Section 8(c) of the Elections Act. The objection that the Election Commission exercised its power in the present case after the completion of the election process is, therefore, not sustainable. 21. The second limitation on the exercise of its general power by the Election Commission under Article 218(3) of the Constitution read with Section 8(c) of the Elections Act is, however, found attracted. The matter of directing a re-poll or a fresh poll by the Election Commission in the process of conducting the election has expressly been dealt with in the Elections Act. There are three provisions in the Elections Act that deal with this matter in relation to the duty and power of the Election Commission to "conduct the election", which are Sections 9, 88 and 121 of the Elections Act.[18] As the matter of directing a re-poll by the Election Commission in the process of conducting the election has expressly been dealt with in the Elections Act, the Election Commission was not justified to invoke and exercise its general power under Article 218(3) read with Section 8(c) of the Elections Act in the present matter. 22. However, we are cognizant of the well-settled legal position that the mentioning of a wrong or inapplicable provision of law or non-mentioning of the applicable provision of law while exercising a jurisdiction or a power which is otherwise vested in a court, tribunal or authority, does not by itself have fatal consequences.[19] Therefore, we proceed to examine whether the impugned order could have been passed by the Election Commission under Section 9 or 88 of the Elections Act and can be sustained under any of these provisions of the law.[20] Scope of Section 88 of the Elections Act and its applicability to the present case 23. We shall discuss the scope and applicability of Section 9 later. First, we consider the provisions of Section 88, which are reproduced here for ease of reference: 88. Stopping of the poll.--(1) The Presiding Officer shall stop the poll and inform the Returning Officer that he has done so if-- (a) the poll at the polling station is, at any time, so interrupted or obstructed for reasons beyond the control of the Presiding Officer that it cannot be resumed during the polling hours fixed under section 70; and
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(b) any ballot box used at the polling station is unlawfully taken out of the custody of the Presiding Officer, or is accidentally or intentionally destroyed, or is lost or is damaged or tampered with to such an extent that the result of the poll at the polling station cannot be ascertained. (2) Where a poll has been stopped under sub-section (1), the Returning Officer shall immediately report the circumstances to the Commission and the Commission shall direct a fresh poll at that polling station unless it is satisfied that the result of the election has been determined by the polling that has already taken place at that polling station, along with the result of the polling at other polling stations in the same constituency. (3) .......... (4) .......... (Emphasis added) A reading of Section 88 shows that the tampering with the ballot box referred to therein relates to the polling day, not thereafter. Secondly, the power of the Election Commission to direct a fresh poll at…
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